Posted On by &filed under High Court, Patna High Court.


Patna High Court
Saroj Tirkey vs State Of Bihar on 31 July, 2000
Equivalent citations: 2001 (1) BLJR 288
Author: I Singh
Bench: I Singh


JUDGMENT

I.P. Singh, J.

1. The sole appellant has been convicted under Sections 376 and 342 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 10 years under Section 376 of the Indian Penal Code. However, no separate sentence has been passed for the conviction under Section 342 of the Indian Penal Code.

2. The prosecution case, in brief, is that in the night of 14/15.4.1991 at village Kersai Charles Tangora, P.S. Kurdeg the victim girl, Basanti Kumari, had gone to attend the marriage ceremony at the house of Ratu Manjhi and when she was returning to her house along with Matwar Manjhi (grand father), Demani Devi (grand mother) and one lady Koche and when they reached at Charles Tangara suddenly two unknown persons appeared and stopped them and asked as to where they are going. It has been alleged that they threatened them to kill with Bomb and Bhujaili. Thereafter, the grand father and grand mother of the victim girl along with Kocha fled away from there and both the miscreants caught hold victim girl, Sasanti Devi and took turn away in an incomplete Hospital building. It has been alleged that both of them have committed rape upon her whole night, it has been alleged that one of the accused fled away from there and the appellant slept there. It has been further alleged that the victim girl fled away from there and want to the marriage house and informed his father about the occurrence. She stated that two persons who caught hold of her and committed rape upon her and one of them was still sleeping in that house. Thereafter the victim girl took his father and other villagers to that house. Where they found one man was sleeping necked there. The victim girl pointed that he was the man who has committed rape with her. Thereafter the people caught the appellant and on inquiry he told his name as Saroj Tirkey (appellant). The appellant was brought to the village and the matter was informed to the police and the appellant was handed over to the police. The victim girl made her statement on the basis of which F.I.R. was lodged and after completion of investigation the police submitted charge-sheet against the appellant. Accordingly, the cognizance was taken and the case was committed to the Court of Sessions where the trial concluded with the result as indicated above.

3. The appellant pleaded not guilty and has stated that he has been falsely implicated in this case at the instance of his enemy.

4. The prosecution to prove its case has examined altogether eight witnesses including the victim girl. P.W. 8 is a formal witness who has proved the hand writing of the then Officer Incharge (Ext. 2). P.Ws. 2 and 7 are tendered witnesses. P.Ws. 1, 3, 4, 5 and 6 are the material witnesses on the factum of occurrence.

5. P.W. 5, the victim girl, Basanti Kumari, has fully supported the case of the prosecution as narrated in the F.I.R. She has stated that she had gone to attend the marriage ceremony or at the house of Ratu Manjhi at village-Kersai Charles Tangara Toli. After first she along with Natwar Manjhi (grand father), Deomani Devi (grand mother) and one Koche were returning back at attending the marriage ceremony to village home and when she reached at Charles Tangars they were surrounded by two persons. They threatened them having explosion of Bomb and Bhujali and they caught the victim girl. Then out of fear, Natwar Manjhi, Deomani Devi and Koche fled away. They took her forcibly in an incomplete hospital building and both of them committed rape with her whole night.

6. P.Ws. 1, 3 and 4 have also supported the case of the prosecution. They have stated that on the date of occurrence the victim girl has gone to attend the marriage ceremony at the house of Ratu Manjhi and in the mid night when she was returning to her house along with her grand father, grand mother and one Koche and when she reached near Charles Tangars two persons came and have taken away Bansanti Kumari (victim girl) and threatened them to kill them with Bomb and Bhujali. Out of fearthey fled away but the miscreants took away Basanti Kumari from there. Thereafter they returned to the marriage house and informed about the occurrence to the father of the victim girl. They have also stated that they tried to search out the victim girl but did not succeed. They have further stated that early in the morning the victim girl returned at the marriage house and told her father that how the accused-persons took her in the incomplete building of hospital and committed rape with her. On her statement, they went to the place of occurrence where the appellant, Saroj Tirkey was sleeping then they caught the appellant and handed over to the police. In their cross examination, they have fully corroborated the version of P.W. 5.

7. P.W. 6, Mira. Manjhi, who is the father of the girl has stated that on the date of occurrence he was in the house of Ratu Manjhi but in the night he did not return to his house but stayed there but her daughter Basanti Kumari went to her house along with Matwar Manjhi, Deomani Devi and Koche but in the mid night Natwar and other came there to him and told that two persons have taken away his daughter. On this information, he went with them to search his daughter but they could not succeed and returned and early in the morning her daughter, Basanti Kumari, came to him and told that she was taken away by two persons in an incomplete hospital and each of them committed rape with her and one of them had fled away, but another is sleeping in that house. On this information he along with P.Ws. 1, 3, 4 and 5 went to the place of occurrence and found that one person was sleeping. They caught hold of him and on enquiry he disclosed his name as Saroj Tirkey. They informed the police and the appellant was arrested. In cross examination he has fully supported and corroborated the version of the victim girl (P.W. 5) and other witnesses.

8. The deposition of P.W. 5, victim girl is very consistent on the point of her forcibly taken away by the appellant and the co-accused. The same has also been corroborated by the evidence of P.Ws. 1 and 3 and one Kocho who were accompanying her at the time of taking away by the appellant and co-accused. From the evidence of these witnesses, there is nothing to disbelieve their version. Though it has been contended that their acts are most unlikely but P.Ws. 1 and 3 have stated that the got afraid and out of fear they fled away leaving the victim girl in the hand of appellant. P.W. 5 has consistently narrated that she was forcibly taken away by the appellant and co-accused in an incomplete hospital building and both the miscreants committed rape upon her. In her cross examination though she was examined at length but there was nothing to disbelieve her version.

9. It is well settled that an offender can be convicted even on solitary evidence of prosecutrix if her evidence is reliable and trustworthy. They victim girl was unmarried and as such, she will not invite such disgrace in society and should not disclose about a false sexual assault only to implicate a person until and unless she is actually not subjected to such cruelty and insult. The other witnesses have also corroborated the version of the victim girl. It is true that the I.O. and Doctor have not been examined neither the medical report was proved but non-examination of the I.O. is not Patel since in such type of cases no objective finding from the I.O. is expected at the place of occurrence. However, non-examination of the I.O. has remained a lacuna on the part of the prosecution agency. The non-examination of the doctor is also a serious lacuna but as submitted by the State Counsel in the case diary the report of the doctor has been mentioned by the I.O. which support the commission of rape by the appellant. In view of consistent evidence of the victim girl corroborated by other witnesses, the case of the prosecution will not be thrown out.

10. From the detailed discussions made above, it is clear that the Court below has rightly convicted the appellant for the offence punishable under Sections 376 and 342 of the Indian Penal Code. I do not want to interfere with the conviction of the appellant an it is, accordingly, upheld.

11. Keeping in view the facts and circumstances of the case and also that the appellant has remained in jail for about 3 1/2 years, in my opinion, the ends of justice will be met if the sentence of the appellant is reduced to the period he has already gone in jail custody with a fine of Rs, 1,000- to be deposited by the appellant within a period of three months from the date of receipt/production of a copy of this order. In default, he will have to further undergo rigorous imprisonment of one year. The amount of fine, if and when, realised by the appellant the same will be given to the victim girl (P.W. 5). Basanti Kumari.

12. With the aforesaid modification in the sentence, this appeal is dismissed.


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